The Rabbit Versus Double G

Matt Osborne takes on Glenn Greenwald on the subject of our "illegal" war in Libya.  Now I personally think that for us to be in Libya is stupid, but I wouldn't go so far as to say we're doing it illegally. The points Matt raises are in rebuttal to Double G, who argued earlier this week that the War Powers Act of 1973 simply doesn't apply to Libya because it's not US territory, and US forces were not involved nor attacked, ergo without an actual congressional declaration of war, we're past the 60 days clause of the War Powers Act anyway and that it's illegal all around.  Matt picks it up from there:

The problem with this argument is twofold. (1) The United States has ratified, and is treaty to, international laws requiring our participation in collective security. (2) The Constitution of the United States specifically names the President as commander-in-chief of the armed forces, and the Constitution is not a technicality. 

Let’s start with number two. Greenwald would like to see Congress declare war before the first Tomahawk missile is launched, but the exigencies of modern war eclipsed that process with the attack on Pearl Harbor. By the time Roosevelt had a chance to ask Congress for a formal declaration of war, American forces had already received orders to fight — indeed, were already engaged in pitched battle.

These issues are why the Supreme Court has generally given presidents wide discretion to make decisions about the use of force (see Campbell v. Clinton, cert. denied, 531 U.S.815 Oct. 2, 2000). Far from “clinging to a fiction” that the WPR authorizes operations in Libya, as Greenwald and his sources declare, this president — like every president since 1973 — sees the law as constitutionally problematic, not to mention potentially disastrous when applied to the letter.

And that's problem number one with Greenwald...he's arguing the War Powers Act exists solely in a vacuum, and that there's not judicial precedent involving the enforcement and interpretation of enforcement of it...something you'd expect a former constitutional lawyer to at least acknowledge.

Nor can Greenwald realistically argue that Congressional deliberations produce a better outcome, as Congress gave President Bush an authorization to use force in Iraq. To his credit, Greenwald doesn’t try to make this argument; instead, to his discredit, he tries to establish that America’s role in Libya is just like Iraq. That is ridiculous. Iraq was governed by a despotic dictatorship and its citizens speak Arabic — that is as far as the similarity goes. There was no popular armed uprising in Iraq begging for international assistance. If Greenwald thinks that makes no difference, he can ask the Libyans what they think, since they’re the ones doing all the dying.

There's that vacuum again, with Glenn narrowly tailoring the argument to one facet rather than the holistic approach.  As many times that Greenwald has argued that the Bush administration and their neo-con supporters failed to grasp nuance when dealing with the Middle East, Greenwald himself does a spectacular job of failing to grasp nuance and instead resorts to the lazy "Iraq = Libya, neeners" comparison.  Problem number two.

It is their war, after all. This is an inconvenient fact for Greenwald, for like many detractors of the NATO mission he seems to think Obama decided to use the big stick on a lark, unilaterally. In fact, Moammar Ghadafi declared war on Libyans first, Libyans declared war right back, Libya’s already-unstable neighbors brought the Arab League to a vote, the United Nations Security Council took a vote, and NATO took on the Libyan mission before the first American missile flew. Obama had to be lobbied by Sarkozy and Cameron — a historical irony, as Reagan could have only wished for such allies.

G.W. Bush wanted a UN resolution as cover, but went to war in Iraq with only Congress on his side. The Bushies didn’t have NATO, much less the Arab League. They flouted international law; Obama is responding to it. 

And here is problem number three with Greenwald's argument as Matt points out:  Obama did not in any way act unilaterally.  The international community and particularly our NATO allies Britain and France begged us to help them undertake this mission.  You can absolutely make the case that NATO is more trouble than it's worth in 2011, but Greenwald doesn't do this.  Our NATO treaties, which Congress ratified, are the authorization we needed to undertake the mission.  The Arab League and UN signed onto it.  It really is that simple.  I don't agree with it, but it's not illegal, and it's silly to say it is.

Matt Osborne ends with this notion:

Collective security is the progressive idea at the heart of our liberal international order. You would think more people on the left would get this; Greenwald simply doesn’t care, because taking old posts about Bush and using find/replace is easier than admitting you are less relevant than you were in 2003.

It's a harsh judgement, but a fair and decent one.  Well played, Rabbit.